Piracy

At least since the 15th century, state and corporate propagandists have used the term “piracy” to demonize the seizure and resale of private property. More recently, they have expanded the use of this term to the unauthorized reproduction and distribution of immaterial goods, regardless of whether the “pirates” are motived by profit or not. The propaganda campaign around online “piracy” has been largely successful. But rarely does public inquiry include assessment of the threat to knowledge and creativity posed by the enclosure of the knowledge commons in the hands of private multinational firms. In our definition of “piracy,” we will begin by tracing the legal and popular history of the term, from the maritime “pirates” who plagued seaborne trading monopolies to present-day digital “pirates” who engage in unauthorized duplication, distribution, or use of patented or copyrighted materials. We will then discuss the current use of the term by industry as a key tool in their attempts to criminalize the free exchange of information. We will focus primarily on the concept of “piracy” as it is used in discussions of audiovisual material, software and other forms of digital information. However, we want to emphasize at the outset the connections between the struggle over criminalization of “intellectual property” infringement in the arena of digital content, and related actions taking place in other sectors. The worldwide expansion of the “intellectual property” regime (especially patents) has a critical impact on access to essential medicines, biotechnology, agriculture, scientific knowledge, and so on. Finally, we will conclude by highlighting some alternative ¬frameworks and ways forward used by civil society activists to safeguard the social value of knowledge.

History of the concept

The modern term “piracy” first emerged in the 15th century[1]. It was primarily applied to stateless individuals who availed themselves of the goods carried by state or state-backed company vessels on the high seas. Although it may seem that current use of the term is sufficiently distinct to warrant complete separation from its maritime sense, there are several threads from this earlier use that remain relevant today. The older concept of maritime piracy was in part a construct developed and promoted by powerful private firms, who sought the legal protection of the state to legitimate their own material interests and commercial monopolies. [2] Thus, even in the heyday of plunder on the high seas, use of the term depended entirely on your position.[3] For example, the British legal distinction between “privateers”, which were vessels or individuals recognized or sponsored by one European state or another, and “pirates,” which were stateless, was an important one. The concept of piracy was so intensely embedded in the presumption of a right to commercial dominance that European ships often considered their own predation on local merchants legitimate. In other words, only difference between “pirate” and “privateer” was that the latter retained a letter from the government granting the right to plunder.

Today, the battle against “piracy” is being fought in the realm of commodified knowledge, and the law and rhetoric of illigitimate use, distribution, and production of goods revolves around increasingly protectionist policies governing intangibles, such as trademarks, patents, and copyright. The antecedents of these policies lie in the 16th and 17th century, when Venetian and English laws granted printing monopolies to specific publishers, and established direct state control (i.e. censorship). By the 19th century, the term “piracy” was increasingly applied to publishers who made copies of books for sale without seeking permission from the author or providing the original author with royalties. Many of the debates at this time surrounded the unauthorized reproduction of works overseas, where local laws did not hold jurisdiction.

At an early stage in the history of the United States, the US Congress recognized the role that importation and widespread dissemination of foreign cultural, artistic, and scientific works would play in promoting literacy and in economic, political, social, and cultural “development.” Thus, while the US Copyright Act of 1790 offered limited protections for domestic authors, Section 5 of the Act held that:

“...nothing in this act shall be construed to extend to prohibit the importation or vending, reprinting, or publishing within the United States, of any map, chart, book or books, written, printed, or published by any person not a citizen of the United States, in foreign parts or places without the jurisdiction of the United States.” [4]

That is, the writers of early US copyright law understood that limiting the scope of private knowledge property rights was in the public and state interest. In this way, the US chose to uphold its own sovereignty over the property claims of other states and individuals.

Indeed, book and other forms of print “piracy” were widespread in colonial era American states. [5] After independence, appropriation of foreign works was encouraged by elites with the rationale that this would encourage public literacy, as well as foster the growth of domestic literature and a local publishing industry. [6] The very spirit of the 1787 Copyright Clause of the US Constitution obligates Congress to balance the individual financial interests of creators against the greater public’s interest in access to information. [7] This Clause became the legal basis for fair use: the principle that exceptions to copyright should be granted for purposes of criticism, parody, news reporting, and education. [8] Times have changed.

By the late 1800s, the development of international copyright law was well underway. By 1886, ten countries (not including the US, which did not sign until 1988) were prepared to sign what became known as the Berne Convention. This Convention provided all participating countries a guarantee of mutual respect for national copyright laws protecting literary, scientific, and artistic work, and offered limited exceptions for “developing” countries. Over the next century, the Berne Convention underwent revisions and gained more and more signatories. In 1967, it became the cornerstone of the World Intellectual Property Organization (WIPO), a body created as an independant institution and then integrated within the UN system to monitor, develop, and promote “intellectual property” (copyright, patents, and trademarks).

Meanwhile, technologies like the photocopier, which hit the commercial market in 1949 and was in widespread use by the late 1960s, transformed book and sheet music “piracy” into a booming international business. Similarly, by the late 1960s audio recording on magnetic tape altered the music industry, cassettes rivalled vinyl records as the standard form of distribution, and the industry propagandists began to apply the term “piracy” to illicit mass duplication of music cassettes for sale to consumers. [9] In 1971, the US Sound Recording Act initiated the protection of sound recordings under copyright law. The 1970s saw the development and diffusion of the first practical home video recorders, and the first “pirate” copies of commercial films. In response to these technological developments, motion picture companies pressed Congress for protections against the duplication technologies themselves, and demanded higher penalties for unauthorized duplication. Record companies also acted to slow the release of technologies they believed would challenge their distribution monopoly. Industry pressure, for the most part, failed to block the development and distribution of duplication technologies. [10] However, the audiovisual industry sucessfully lobbied the US Congress to criminalize “piracy,” and over the last 30-40 years, Congress repeatedly broadened the definitions of and penalties for copyright infringement. The US Copyright Act of 1976 expanded application of the law to those who had not yet made a penny from infringement, but could be shown to have the intent to make a profit; the Piracy and Counterfeiting Amendments Act of 1982 significantly hiked penalties for infringment of copyrighted audiovisual works. [11] In a similar vein, the intense development of the computer software industry in the 1980s was accompanied by software industry demands for protection of their “goods.” Their efforts were rewarded in 1992, when unauthorized, for-profit reproduction and distribution of software was also made unlawful. [12]

Still, until very recently, the term “piracy” only applied to profit-seeking mass duplication of “hard” copies of text, audiovisual content, and software (copies fixed on physical materials such as paper, magnetic tape, or plastic disc). It was not until the widespread adoption of new digital technologies and the Internet in the late 1990s that industry began to apply the term “piracy” to the growing practice of free exchange of music, and to refer to individuals who participated in free information exchange as “pirates.” Congress followed suit. Although hotly contested, 1997 saw the passage of the No Electronic Theft (NET) Act, which effectively criminalized unauthorized use of copyrighted work regardless of intent. With a profit motive no longer seen as a defining characteristic of “piracy,” the intent to freely share material could no longer exempt one from criminal liability. The Digital Millennium Copyright Act (DMCA), enacted in 1998 to bring US intellectual property legislation up to speed with two World Intellectual Property Organization (WIPO) treaties (the 1996 Copyright Treaty and 1997 Performances and Phonograms Treaty), both reified the expansions noted above and further restricted the development of technologies that might be construed to undermine copyright protection systems. Nevertheless, free filesharing exploded into popular consciousness in 1999 with the popular filesharing service Napster.

The US copyright story above builds against the backdrop of booming US post-World War II industrial development. The research, production, and distribution processes that emerged from a well-funded military-university-industrial complex provided the United States with growing economic advantage based largely on the production of new knowledge in key sectors (medical and other scientific technologies, pharmaceuticals, chemicals, electronics, computing, etc.). Particularly over the last 60 years, the US government came to see knowledge production as fundamental to its economic growth and national security. During the same period, knowledge ownership shifted from individuals to corporations, and corporations were increasingly successful at demanding the enforcement of monopoly protections. The post-WWII world remained greatly unequal in terms of the distribution of political and econonomic power, and certainly this was the case with regard to the so-called knowledge industries. By the 1970s, powerful knowledge industries within the US had very successfully incorporated their interests into US foreign policy: the “special 301” clause of the US Trade Act of 1974 created a mechanism to pressure foreign governments to adhere to US copyright and patent law, by creating a list that ranked countries by their level of “intellectual property” (“IP”) infringment. By the 1980s, the US had begun in earnest to take its “IP” agenda abroad via trade agreements, pressuring countries to adopt US copyright and patent standards and enforcement as a condition of trade. Despite the fact that Berne and other international agreements on “IP” provided exceptions for poorer countries and their development agendas, those countries that failed or refused to uphold US “IP” law, or made full use of compulsory licensing [13] or other exceptions, were increasingly called “intellectual property pirates”.

Yet the 1980s were to be only the beginning of the link between trade law and “IP.” Frustrated with the failure of extant international bodies to force countries to observe “IP” laws, and outnumbered in international forums composed of delegates from newly independent, former colonial states (i.e. UN bodies like WIPO and UNESCO), the US developed a strategy to move the fight over “IP” elsewhere. Copyright industries (audiovisual) in coalition with patent industries (chemical and pharmaceutical, and increasingly software) fought for decades to create a strong global “IP” regime. After a fierce battle within WIPO (in particular between knowledge-industry giants like the US, Japan, the UK, and Germany, vs. the vast majority of developing countries), the expansion of the “IP” regime was forcibly taken to another venue. In 1996 the content and intent of Berne and other copyright, patent, and trademark conventions were largely superseded by the World Trade Organization (WTO) agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). TRIPS has proven a very effective tool for forcing developing countries to adopt a US-style “IP” system, regardless of whether this is in the best interest of their populations, because failure to comply means risking trade sanctions. WIPO took a back seat to TRIPS, but remains an important part of the international harmonization of “IP” law.

Globally, the anti-“piracy” maximalist copyright and patent campaign is quickly gaining ground, without widespread participation in debate and without ¬public knowledge of what is at stake. The governments of Japan, the EU [14], Australia, and even some developing countries [15] are increasingly adopting anti-“piracy” arguments initially developed by US incumbent industries. The term “piracy” is not only used in global (WTO), regional (FTAA), and bilateral trade negotiations, it is deployed across the board by the US government within multilateral institutions. This is especially true at WIPO, but also within UNESCO and in the World Summit on the Information Society (WSIS) process. For example, the need to combat online “piracy” (and “cyberterror”) is a plank of the US position in the WSIS; as well as at UNESCO during negotiations over the draft Convention on the Protection and Promotion of Artistic Contents and Cultural Expressions [16].

An assessment criterion: access to knowledge

If allowed to continue unchecked, recent developments in copyright and patent law that expand the definition of and penalties for “piracy” will carry serious negative implications for fair use [17] and the public domain, technologies and technological standards (for example, Digital Rights Management requirements), education, and the knowledge commons. A growing, diverse movement views the current “intellectual property” regime as a threat to the democratization of education, civic participation, the promotion of creative expression, and protection of a shared human heritage of knowledge and creativity. Many argue that the problem should be reframed: rather than ask “what is wrong with piracy?” we might ask “what is wrong with “intellectual property”?” It would be an understatement to say that current industry use of the term “piracy” is hotly contested.

The “copyright industries” (music, film, and software especially) use an extremely wide definition of “piracy” that includes all unauthorized duplication, distribution, and use of copyrighted material, regardless of whether such duplication is done: 1) by professional firms, carrying out large scale duplication and reselling material for profit; 2) by service providers who host filesharing tools ; 3) by individuals who use filesharing networks to freely share material; or even 4) by consumers who unknowingly engage in “piracy” when they fail to fully understand the licensing terms of products they ¬initially purchased, for example when they make a few extra copies for personal or family use [18]. All of these uses of the term “piracy,” other than the first, are serious extensions that should not be taken lightly. In part because of industry’s expansion of the term, lawmakers in the past decade have begun to conflate free content sharing with resale of copyrighted material, to the point that filesharing has almost become synonymous with “piracy” [19].

Industry (and state) propaganda targeting public opinion about “piracy” is based on several key points: first, they emphasize the vulnerability of the artist, researcher, or programmer, and the direct suffering of original creators at the hands of “pirates”; second, they argue that without the economic benefits guaranteed by a strong “intellectual property” policy and rigorous enforcement, creativity will falter for lack of incentives; third, they claim that weak “intellectual property” regulations, particularly in developing countries, will undermine “development,” stunt the livelihood of local artists and the growth of local industry, and threaten local knowledge. While industry funds expensive studies that generate enormously speculative) figures to support these claims, the results are problematic and inconclusive [20].

Even if one accepts industry figures of “lost profits”, such figures always gloss over the exploitative relationship between corporate rights holders and the original producers. Not surprisingly, there is an internal industry debate that fragments along lines of position in the commodity chain. Creative workers, publishers, broadcasters, advertisers, retailers; all have differing interests at stake. Within each category there are different interests as well; for example between star artists and the vast majority, between incumbents and new firms, between distributors with a business model based on sale of physical media and those involved in digital distribution. However, there is marked and growing dissent from creative workers who resist the industry crackdown on “piracy” in their name.

Whether or not profits from patents and copyright are necessary incentives for innovation is also an unsettled controversy. To some extent, the debate is overdetermined by the dominance of propaganda describing losses from potential sales (and ultimately, one cannot equate a “pirated” copy with a lost purchase). Yet it is an ideological position, not a hard economic fact, to assert that conferring economic benefits on immaterial “property” rights holders is the most efficient method of supporting immaterial labor. The narrow economistic way in which the debate has been cast marginalizes the existence of other strategies for economic support .

Estimation of the scale of “piracy” is extremely difficult even when focused on mass counterfeit of “hard” media (cassettes, CDs, DVDs). As for “piracy” online, even industry admits that their best estimates are shots in the dark. For example, at the time of this writing, Internet traffic analysts are estimating that one-third of all Internet traffic is bittorrent files [21]. The percentage of bittorrent traffic comprised of free filesharing of copyrighted audiovisual material and software is unknown, but is likely high. If it is difficult to estimate the amount of files exchanged, it is even more difficult to untangle the conflicting claims about the impacts of “piracy” on industry sales (does every file exchanged represent an item that someone wanted enough to purchase?), on consumption behavior (does frequent filesharing encourage people to listen to music they wouldn’t have heard otherwise, and lead to more music purchases overall?), and on creative workers’ livelihoods (do musicians build larger fan bases, attract bigger crowds to live shows, and sell more merchandise because of free filesharing?).

In terms of software, widespread “piracy” may ultimately serve to increase sales, even if it does hurt sales in the short term. This is because “piracy” serves to establish a market base for future exploitation, and in some cases may contribute to near-monopoly market saturation. Indeed, this is a fact not lost on Microsoft executives, and likely drives recent “philanthropic” behavior by the software giant, particularly in the face of the “threat” posed by free and open source software. The $1 Billion USD partnership between Microsoft and the United Nations Development Programme, announced at the 2004 World Economic Forum, is in this view an effort to ensure market share by locking developing country users in to Microsoft products. The expectation is that present “losses” (the real cost of software reproduction is nearly zero) will be compensated many times over by sales to future business and consumer markets, once these are secured by the continued globalization of a strong US-style “IP” regime. The same argument can be applied to the audiovisual industry, in the sense that “pirate” product in developing countries serves to build local demand for content as well as infrastructure for distribution and consumption. Once demand is established, the push for stronger “IP” law and the “crackdown on piracy” begin, and industry reaps the rewards.

At the international level, industry releases country-by-country figures representing estimated losses to piracy each year, and uses these to put pressure on developing countries in trade negotiations [22]. Industry groups lobbying on behalf of copyright and patent holder giants argue to the US government that the future of US economic hegemony will increasingly be dependent on their domination of the knowledge economy. [23] The recommendations of the copyright industries for international negociations are generally accepted, nearly verbatim, and the industry-listed countries must change their domestic copyright and patent laws or face trade sanctions.

To summarize thus far: brief, limited state-protected monopolies on knowledge were originally intended to promote education, the arts, and sciences by balancing an incentive mechanism for original creators with the rights of the public to access knowledge. Now, however, large corporations own the knowledge monopolies, not original creators; the terms of copyright have been expanded to nearly a century[24] after the death of the author; and the penalties for infringment are greater than ever. The growing list of protected “knowledge” has come to include our very genetic code, and even entire living organisms. The costs? Untold damage to innovation, education, the arts, the sciences, the right to freely exchange information, and in the case of drug patents, human lives [25].

In the context of growing wealth inequality, stratification of access to knowledge via market mechanisms will further marginalize the poor. Developing countries, together with innumberable “civil society” groups, continue to argue that the “IP” package of brand names, patents and copyright, delivered via TRIPS, WIPO or bilateral trade agreements, is really a means for already dominant firms to expand into regional and global monopolies. Moreover, despite a well developed ¬discourse around the special need to combat audiovisual and other forms of “piracy” in the developing world, many point out that the real “pirates” in the South are the biopirates: giant Northern pharmaceutical and agrobusiness firms that are busy taking out patents on medicinal plants and crop strains, among other “found” objects, developed over thousands of years by indigenous peoples [26].

Reclaim the commons

Many recognize that the current protectionist regime of copyright and patents does more harm than good. Some developing countries are organizing to assure, that the “IP” regime as embodied in the “TRIPS-plus” agenda does not result in the total betrayal of their interests. Librarians, scientists, artists, and many others continue to organize to promote widespread, free, public access to knowledge. Filesharing has thus far continued to skyrocket despite industry lawsuits against end users. Historically, in the US at least, Congress and the courts have been unwilling to completely stifle technological development in order to appease industry demands[27]. So-called “pirate” activities have in the past succeeded in achieving legal legitimacy (for example, the “pirate” radio movement in the US resulted in the legalization of Low Power FM stations). At least in some cases, privacy has trumped industry interests[28]. In 2004, WIPO was forced by developing countries and civil society pressure to agree to review its activities in light of the UN Millenium Development Goals. Brazil recently adopted Creative Commons as the default license for musical recordings, and Open Source Software in all public institutions. These and numerous other alternative techniques, strategies, and movements are developing within and outside of the current “intellectual property” regime.

The Development Agenda. In the case of essential medicines, an important victory at the Doha WTO round secured exemptions from TRIPS for compulsory licensing of generic drugs under certain conditions. The countries that fought for the Doha exception are now pushing strongly to reform WIPO so that “IP” will be considered as one of various possible mechanisms to extend necessary knowledge to developing countries, rather than as an end in itself. In addition, Brazil, China, and a growing list of other developing countries are moving to adopt Open Source Software as the norm in public institutions. Their arguments range from economic sustainability, given the high cost of maintaining proprietary software, to security. In terms of cultural “goods”, the Brazilian Ministry of Culture, headed by musician and social justice activist Gilberto Gil, recently proposed adopting the Creative Commons noncommercial-attribution-share alike license as the default for musical recordings, based on the argument that the availability of a robust creative commons is essential to new creative work. Further, some developing countries have recently stepped up pressure to institute international legal mechanisms to fight back against “biopiracy” and to protect indigenous peoples from appropriation of their traditional knowledge and creative expressions through invalid copyrights and patents.

Access to Knowledge Treaty. In February, 2005, an important conference organized in Geneva by the Consumer Project on Technology (CPTech), Third World Network (TWN), and the International Federation of Library Associations (IFLA), was well attended by public interest groups, researchers, academics, and diplomats to discuss the creation of a “Treaty on Access to Knowledge”. This civil society action follow a call by Argentina and Brazil for a “Development Agenda” to WIPO This “a2k” conference focused on organizing strategies and a potential common way forward: a treaty that would better balance the information needs of different publics with the private interests of copyright holders. Materially, the Access to Knowledge Treaty might include exceptions and limitations to patent and copyright in key areas like public health and education [29].

Open source/free software movement. The worldwide spread of the Free/Libre Open Source Software (F/LOSS) movement is one of the most powerful counterexamples to the anti-“piracy” crusade . Thousands of programmers devote their time to working on software with source code that is open to the public (open source), and in many cases free to use and licensed in a way that others may build and improve on, but only if their work also remains free and open (Free/Libre Software). As success of free software extends, the software giants challenges it in the form of the growing push for software patents, already common in the US and under consideration in the EU.

Music sharing. Many independent musicians argue that, for the vast majority of musicians, who make their living from playing live performances rather than from royalties on recordings, the free distribution of music via filesharing networks is not a threat but rather a form of free publicity and a way to build a larger fan base. Others promote a “shareware” model of audio recordings, where distribution is free but fans are encouraged to donate a small amount directly to the artist if they enjoy the recording [30]. Since all the money goes directly to the artist, even the small proportion of fans who donate means more for the musicians than the industry model, where the vast majority of the price tag evaporates along a chain of middlemen. Such attitudes towards filesharing among creative workers are not marginal: a recent Pew Internet and American Life study of musicians and artists [31] found that, while artists are split in their attitudes to filesharing, the majority (2/3rds) do not perceive the Internet as threatening their livelihood, and a significant proportion feel that free filesharing has helped their careers.

Peer-to-Peer (P2P) Networks. P2P technology replaces the centralized model where information is hosted on one server, which has to bear the load of sending files to every user, with a networked model where every user can retreive shared information from every other user’s machine. In this way, the use of bandwidth is optimized and files that are in high demand actually become easier to download (since there are more copies available and more machines providing access to them). Although the audiovisual industries are trying to make P2P synonymous with “piracy”, the technology itself has a wide range of uses. P2P technology has enabled decentralized communication for communities, movements, interest groups, campaigns, and so forth. Peer-to-peer allows dissidents living under repressive governments to communicate with each other and with the outside world. Growing numbers of individuals are engaging in what has been termed “commons-based peer production”, wherein the production of knowledge goods, artistic works, and services is based upon resources that are held in the public domain and organised by peers. However, P2P technology is under legal threat from industry: at the time of this writing, the US Supreme Court is hearing arguments on P2P technology, and will decide whether it will be legally allowed to continue to develop. A wide range of public ¬interest groups have rallied to defend P2P and encourage the Court to support the precedent set in the Betamax case, which states that users, not technologies, infringe copyright [32]. Meanwhile, the number of P2P users continues to grow.

Open-access publishing. Proprietary academic journal databases and archives, which even many universities in the United States cannot afford to subscribe to, virtually guarantee that developing countries do not have sufficient access to knowledge produced in environments with more funding. This grave inequality both prevents developing countries from accessing knowledge that may be critical to the improvement of local conditions, hinders their participation in current research, and sets research agendas according to the priorities of wealthy countries [33]. However, there is a solution: open publishing, basically making journal articles and other materials available online at zero cost and without restricted access, has been growing dramatically. There are numerous models for how to subsidize production and peer-review, and an increasing number of agencies and foundations either require or promote free online access to publications resulting from research they help fund [34].

Alternative licensing. Various forms of alternative licensing are burgeoning, including the General Public License (GPL) under which much Free/Libre Open Source Software development takes place; copyleft; and the increasingly popular Creative Commons licenses [35], which are a user-friendly way to debundle rights of authorship, exploitation, and duplication. For example, the Creative Commons noncommercial-attribution-share-alike license means that anyone may use the licensed work freely, and may incorporate fragments of it into their own work. If they do so, they must give credit to the author of the licensed work, and most importantly, must license their own new work on the same terms. The GPL, copyleft, and Creative Commons licenses help to generate a robust public domain.

The future of knowledge

What will be the future of knowledge? Knowledge, unlike labour or land, can be infinitely replicated. The dynamism of creative growth depends on its ¬replication. Laws based upon the principle of scarcity are absurd in this context. The “tragedy of the commons”, an argument used to justify the enclosure of land for the sake of maximizing production, does not apply to knowledge. The privatisation of knowledge curbs innovation and productivity. As state-sponsored corporate interests continue to expand the terms of ownership over human creativity, they do so at the expense of the public domain; who then is the thief in the battle over enclosure of the knowledge commons? This battle is being played out in local, national, regional, and global policy institutions, and it is a debate that none of us can afford to ignore.

Notes and references

[1] “[from Greek] to attempt, attack, assault. Cf. F. pirate (1448 in Hatz.-Darm.), Sp., Pg., It. pirata, Du. piraat, Ger., Sw., Da. pirat. 1. One who robs and plunders on the sea, navigable rivers, etc., or cruises about for that purpose; one who practises piracy; a sea-robber. 2. transf. A vessel employed in piracy or manned by pirates; a pirate-ship. 3. Any one who roves about in quest of plunder; one who robs with violence; a marauder, plunderer, despoiler. Also fig. 4. fig. a. One who appropriates or reproduces without leave, for his own benefit, a literary, artistic, or musical composition, or an idea or invention of another, or, more generally, anything that he has no right to; esp. one who infringes on the copyright of another. b. One who receives or transmits radio programmes without a licence to do so. Current usage refers to radio transmission.” From the Oxford English Dictionary (1989). OED Online. Oxford University Press. 21 Mar. 2005. http://dictionary.oed.com/cgi/entry...

[2] Risso, Patricia (2001): “Cross-Cultural Perceptions of Piracy: Maritime Violence in the Western Indian Ocean and Persian Gulf Region during a Long Eighteenth Century,” Journal of World History - Volume 12, Number 2, Fall 2001, pp. 293-319. University of Hawai’i Press.

[3] For example, see Risso’s (2001) description of a 17th century Kanhoji, a “pirate” to the British, enemy of the Mughal state, but a champion of Indian resistance to others; or of William Kidd, “pirate” to the British East India Company, self-proclaimed “privateer” for the crown, and European aggressor to the Mughals.

[4] Copyright Act of May 31, 1790, section 5. See Paltry, William F. (1994): “Copyright Law and Practice.” The Bureau of National Affairs, Inc., 1994: 33.
http://digital-law-online.info/patr...

[5] “The United States stood out in contrast to countries such as France, where Louis Napoleon’s Decree of 1852 prohibited counterfeiting of both foreign and domestic works. Other countries which were affected by American piracy retaliated by refusing to recognize American copyrights. Despite the lobbying of numerous authors and celebrities on both sides of the Atlantic, the American copyright statutes did not allow for copyright protection of foreign works for fully one century.”
Khan, B. Zorina (2002): “Intellectual Property and Economic Development: Lessons from American and European History.” Commission on Intellectual Property Rights.
http://www.iprcommission.org/papers...

[6] Ibid.

[7] The original incarnations of copyright were much more protective of the public’s interest than of the monopolies of rights holders. Vaidhyanathan, Siva (2001): Copyrights and copywrongs: the rise of intellectual property and how it threatens creativity. New York: New York University Press.
Boyle, James (2003): “The second enclosure movement and the construction of the public domain.” Law and Contemporary Problems, January, 2003.http://www.law.duke.edu/journals/lc...

[13] A compulsory license is a license to use a patent, copyright, or other exclusive right that a government forces the holder to grant to others. Examples in patent law: Compulsory patent licenses are a relaxation of patent requirements given to governments during the World Trade Organization’s 4th Ministerial Conference in 2001 to meet emergency needs for patented products (like life saving medications). The governments have the right to decide what constitutes an emergency situation in their country.http://en.wikipedia.org/wiki/Compul...

[14] In rich countries, the use of the term “piracy” to apply to internet filesharing has been largely led by US industry and, by extension, the US government. The EU countries are to some degree divided, with on the one hand general agreement on the need to strengthen the IP regime but on the other, resistance to some aspects of US IP law. For example, a fierce battle currently raged in 2004/2005 in the EU over whether to extend patents to software. The European Parliement finally decided to reject the software patenting. There is also currently a proposal for an european Directive on Piracy.

[15] For example, during UNESCO negotiations, the delegation from Benin argued that language about piracy should be included on the grounds that this would help protect “the starving African musician who can’t eat because of piracy;” the Kenyan delegation had a similar stance.
Media Trade Monitor (2005). “UNESCO intergovernmental session II, Fourth Day: Thursday, February 3, 2005.”
http://www.mediatrademonitor.org/no...

[17] “The fair use doctrine is an aspect of United States copyright law that provides for the licit, non-licensed citation or incorporation of copyrighted material in another author’s work under certain, specifiable conditions. (...)Fair use makes copyrighted work available to the public as raw material without the need for permission or clearance, so long as such free usage serves the purpose of copyright law, which the U.S. Constitution defines as the promotion of “the Progress of Science and useful Arts” (I.1.8), better than the legal enforcement of claims of infringement. The doctrine thereby attempts to balance the interests of individual copyright holders with the social or cultural benefits that follow from the creation and distribution of derivative works”. http://en.wikipedia.org/wiki/Fair_use
In Europe, the “right to private copy”, although based on a totally different juridical approach, plays a similar role in attempting to create a balance betweend different stakholders interests.

[19] In particular see discussions of the 1997 No Electronic Theft Act, which criminalized music filesharing even where no profits are involved (Goldman, Eric (2003): “A Road to No Warez: The No Electronic Theft Act and Criminal Copyright Infringement.” Oregon Law Review, Vol. 82. http://ssrn.com/abstract=520122, and the 1998 Digital Millenium Copyright Act, which “gives intellectual property holders the right to take away the fair use and related rights of the public to protect a commercial “digital rights management’ scheme, and interferes with the legitimate operation of peer-to-peer file sharing systems. DMCA is probably unconstitutional” (Electronic Frontier Foundation, 2005 “Digital Millennium Copyright Act (DMCA) Archive.” http://www.eff.org/IP/DMCA/

[20] There is some, mostly industry-sponsored, evidence that filesharing hurts music sales. For a list of links to (mostly industry-sponsored) studies that make this claim, see the European Audiovisual Observatory, 2005 “Report and Studies of the Economic and Sociological Dimension of Peer-to-Peer.” http://www.obs.coe.int/db/gavis/pir.... However, this is countered by recent studies that find strong evidence that filesharing has no statistical impact, or perhaps even boosts music sales, as Oberholzer and Strumpf (2004) who found that the impact of filesharing on music sales was “statistically indistinguishable from zero.” Oberholzer, Felix, and Koleman Strumpf (2004). “The Effect of Filesharing on Record Sales: an Empirical Analysis.” http://www.unc.edu/ cigar/papers/Fi...

[22] See the website of the International Intellectual Property Alliance (http://www.iipa.com) for yearly estimates of “losses to piracy,” as well as methodology used to “calculate” these figures and industry coalition suggestions to the USTR (For example, “2005 Special 301 Report on Global Copyright Protection and Enforcement.” IIPA. http://www.iipa.com/special301_TOCs.... IIPA is a coalition of the Association of American Publishers (AAP), Business Software Alliance (BSA), Entertainment Software Association (ESA), Independent Film & Television Alliance (I.F.T.A.), Motion Picture Association of America (MPAA), and the Recording Industry Association of America (RIAA).

[23] The 2004 annual report of the International Intellectual Property Alliance (IIPA), entitled “Copyright Industries in the U.S. Economy,” provides figures indicating the centrality of these industries to the economic well-being of the US
http://www.iipa.com/pdf/2004_SIWEK_.... Yet the IIPA doesn’t stop there: each year, the organization presents its figures alongside recommendations to the United States Trade Representative (USTR) for this year’s update of the “Special 301” list.

[24] In Europe, the term is 70 years after the death of the author.

[25] For more on the costs of a maximalist copyright and patent regime, see the work of Lawrence Lessig (The Future of Ideas: The Fate of the Commons in a Connected World. New York: Random House), Siva Vaidhyanathan (op. cit), Peter Drahos with John Braithwaite (Information Feudalism: Who Owns The Knowledge Economy ? London: Earthscan. 2001), and James Boyle (op.cit.), among others.

[26] For example, India has fought against the patenting of plants and other living organisms, although TRIPS requires that lifeforms be patentable (this was a highly contentious issue in the history of US patent law). India won a victory in the EU Patent Office over an attempt by the US Department of Agriculture and firm WR Grace to patent neem, which had long been used for medicinal and fungicidal applications, and was in no way a novel product “discovered” by WR Grace or the USDA. There is growing awareness of the risks that the new “IP” system poses to traditional knowledge of all kinds. The question is, will it be possible to convince countries that the same “IP” system is not required to “protect” traditional knowledge? Can local knowledge in the public domain remain so? And what then are the mechanisms that would ¬allow traditional or public knowledge to remain such, without allowing it to remain vulnerable to corporate piracy?
Some readings concerning biopiracy :
Merson J. “Bio-prospecting or bio-piracy: intellectual property rights and biodiversity in a colonial and postcolonial context”: Osiris. 2000; 15: 282-96
Posey DA. “commodification of the sacred through intellectual property rights” J Ethnopharmacol. 2002 Nov; 83(1-2):3-12
Timmermans K. “intellectual property rights and traditional medicine: policy dilemmas at the interface.” Soc Sci Med 2003 Aug; 57(4):745-56

[27] For example in the 1984 “Betamax case,” the US Supreme Court upheld the right of Sony to sell home videotaping equipment (Supreme Court decision in Sony v. Universal Studios 464 U.S. 417, 1984.)

[30] Systems for direct payment from fans to musicians are actively being developed, both on the ground and at the policy level, by independent artists. See the Future of Music Coalition in the US: http://www.futureofmusic.org

[34] See the Public Library of Science: http://www.plos.org
In theory, one would think that any research funded by public monies belongs in the public domain. Following National Institute of Health (NIH, USA), many public organizations over the world are backing public-access to scientific publications.

This text is an extract from the book Word Matters: multicultural perspectives on information societies. This book, which has been coordinated by Alain Ambrosi, Valérie Peugeot and Daniel Pimienta was released on November 5, 2005 by C & F Éditions.

The text is under the Creative Commons licence, by, non commercial.

Knowledge should be shared in free access... But authors and editors need an economy to keep on creating and working. If you can afford it, please buy the book on line (39 €)